Main image of article Biden Administration's H-1B Approach Threatens to Confuse Many

President Biden hasn’t yet decided on whether to lift the Trump-era ban on H-1B visas that is due to expire at the end of March. That adds another element of confusion to the current White House’s H-1B policy, especially in light of next year’s H-1B lottery proceeding as normal.

During a White House press conference last week, one reporter asked whether the Biden administration had reviewed the visa ban, adding: “And has the White House decided to lift those bans before they expire at the end of the month?”

Alejandro Mayorkas, Secretary of the Department of Homeland Secretary, responded:

“You know, I don’t really — I hate to end the questioning on a question, the answer to which I am not certain. But, look, this goes to what preceded us.  We have so much work to do to repair and to restore and to rebuild that we have a prioritization matrix.”

In other words, the Biden administration has higher priorities at the moment than H-1Bs. Meanwhile, despite the ban still technically in place, registration for the H-1B visa lottery for fiscal year 2022 is slated to kick off March 9, running through the end of the month. Since 2020, U.S. Citizenship and Immigration Services (USCIS) has relied on an electronic pre-registration system; only those companies whose registrations are selected via the subsequent lottery will have to complete the visa petitions, which are quite lengthy.

If things weren’t confusing enough, Biden’s U.S. Citizenship Act of 2021 would prioritize visas based on wages, and give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. That would effectively dispose of the current H-1B lottery, which is based on random selection, in favor of a system centered on picking high-wage applicants. (Both the Senate and House bills feature language around wage-based selection.) 

Like the ban on H-1Bs, the wage-based system was originally proposed under the Trump administration, which suggested it was a way to ensure the H-1B is used as intended. “If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies,” read the DHS note about the proposal back in 2020.

Granted, the Biden administration has a number of priorities during its first 100 days, including the (just passed) COVID relief bill. At some point, however, it will need to establish a coherent policy around H-1Bs—including whether to completely revamp the system.